Boulevard Transit Lines, Inc.

In the Matter of BOULEVARD TRANSIT LINES, INC., EMPLOYER and TRANSPORT WORKERS UNION OF AMERICA, CIO, LOCAL 225, PETITIONER Cases Nos. 0-R-7002 and 2-R-70.34.-Decided November 21, 1916 George M. Eichler, by Mr. Irving Bookstaber, of Newark, N. J., for the Employer. Harry Sacker, by Mr. Bernard Davis, of New York City, for the Petitioner. Mr. Morris F. Pearlman, of Jersey City, N. J., for the Intervenor. Mr. Melvin J. Welles, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon petitions duly filed, a consolidated hearing in this case was held at Newark, New Jersey, on September 25, 1946, before Richard J. Hickey, hearing officer. The hearing officer's rulings made ft the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Boulevard Transit Lines, Inc., a New Jersey corporation, has its principal offices and garage in Bayonne, New Jersey. It is engaged in the transportation of passengers between New York and New Jer- sey, and it operates 27 busses, and transports approximately 7,000 passengers daily between its terminals in New York and,New Jersey. During the past year, the Employer purchased 18 busses, valued at approximately $16,000 each. Six of these busses were delivered to the Employer from points outside the State of New Jersey. The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations act. 71 N L R. B., No. 119., 717734-47-vol. 71-47 719 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. Boulevard Transit Drivers Association, Inc., herein called the In- tervenor, is an unaffiliated labor organization, claiming to -represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION On September 2, 1941, the Employer and the Intervenor executed a 3-year contract, covering the Employer's bus drivers. On June 2, 1944, the parties executed another 3-year contract, also covering bus drivers. This contract specifically provides for termination on June 2, 1947, and does not cojitain an automatic renewal clause. On August 27, 1946, the Petitioner informed the Employer that it represented a majority of the Employer's employees. The Employer refused to recognize the Petitioner because of its existing contract with the Intervenor. On August 29, 1946, the Petitioner filed a petition re- questing a unit of bus drivers, and on September 9, 1946, it filed a second petition requesting a unit of shop employees.2 On September 13, 1946, the Employer and the Intervenor executed an agreement modifying the 1944 agreement by enlarging the contract unit to in- clude shop employees. The Employer and the Intervenor contend that the 1944 contract is a bar to a current determination of representatives. We do not agree. We have held that a contract of unreasonable duration is not a bar to a representation proceeding initiated at the end of, or subsequent to. the first contract year.3 An agreement of 3 years' duration will not bar an election unless the party urging the contract as a bar proves that a 3-year contract term is reasonable; and the burden is thus on the Employer and the Intervenor in this case to prove that the ab- normally long term of the 1944 contract is customary in the industry ill which the Employer is engaged.4 These parties introduced evidence at the hearing concerning approximately 6 contracts in the bus trans- portation industry in the New Jersey area which were made for a 3-year term. The Petitioner, on the other hand, showed that about 20 contracts for a 1-year term have been made in the bus transporta- tion industry in the same area. Furthermore, the contracts upon which the Intervenor and the Employer rely were for the most part with intrastate bus lines, while those to which the Petitioner points Case No. 2-R-7002. s Case No 2-R-7034. 8Matter of The United States Fm sh:ng Company, 63 N 1, R ii 37j • Ibid. BOULEVARD TRANSIT LINES, I\ C. 721 were generally with interstate lines such as that operated by the Employer in this case. We are convinced that the Employer and the Intervenor have not sustained their burden of proving that contracts for 3-year terms are customary in the industry. We conclude, there- fore, that the 1944 contract is not a bar to a current determination of representatives.' We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. Iv. THE APPROPRIATE UNIT All parties agree that the following unit is appropriate: All bus drivers, starters and shop employees of the Employer; including me- chanics, greasers, bodymen, washers, utility men, and maintenance employees, but excluding clerical employees inspectors, and all super- visory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees, or effectively recommend such action. They disagree, however, with respect to the supervisory status of the supervisor of night washer-. T lie Employer and the Petitioner agree that he should be excluded from the unit as a supervisory em- ployee; the Intervenor would include him in the unit, claiming that he is not a supervisory employee. The evidence clearly indicates that he has the authority to recommend hire, promotion. discharge, and discipline of employees, that he has done so, and that his recom- mendations have been followed. In addition, he has actually hired and discharged employees under his supervision. Accordingly, we find that the supervisor of iiiglit washers is a supervisory employee within the meanuig of our customary definition, and we shall include him from the unit. We find that all bus drivers, starters and shop employees of the Employer, including mechanics, greasers, bodymein, washers, utility men, and maintenance employees, but excluding clerical employees, inspectors, the supervisor of night washers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascdrtain representatives for the purposes of collective bargaining with Boulevard Transit Lines, Inc., E It is unnecessary to consider the effect of the modification of the 1944 contract iu the face of the petitions which were then pending 722 DECISION S OF NATIONAL LABOR RELATIONS BOARD Bayonne, New Jersey, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations- Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present theiiiselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by Transport Workers Union of America, CIO, Local 225, or by Boule- vard Transit Drivers Association, Inc., for the purposes of collective bargaining, or by neither.